What to watch as the Google memo writer's lawsuit unfolds

Dan Eaton

Usually I write about a case to explain a significant ruling. But sometimes the filing of a lawsuit itself is notable. The complaint former Google software engineers James Damore and David Gudeman just filed against the company is such a case.

Damore, you’ll remember, wrote an internal memo in June 2017 questioning content presented at a company-sponsored “Diversity and Inclusion Summit” on Google’s campus. In that memo, Damore criticized Google’s liberal “ideological echo chamber” and argued that some of the company’s diversity efforts were misguided and may discriminate against white men.

Citing outside research, Damore said that factors other than bias could account for some of Google’s lack of diversity. For example, he wrote “[D]istribution of [job] preferences and abilities of men and women differ in part due to biological causes and . . . these differences may explain why we don’t see equal representation of women in tech and leadership.”

In August, days after the memo leaked, Google fired Damore for what the company said was “advancing harmful gender stereotypes.” Damore believes he really was fired because he is a white male who also is a conservative out of step with Google’s dominant ideology.

Gudeman, Damore’s fellow plaintiff, claims he suffered a similar fate for similar reasons a month after Donald Trump was elected president. Gudeman was fired less than a month after he posted a message directed to Google employees alarmed at Trump’s election. He said anyone “who believes President Trump will be out to get minorities, women or gays has absorbed a lot of serious lies from their [leftist] echo chamber.”

So they sued. Of the ten claims they assert, four seek damages only for wrongs done to them as individuals. The remaining six claims are brought on behalf of Damore and Gudeman themselves and all “Googlers” discriminated against because they: (1) were perceived to be politically conservative; (2) are men; or (3) are white. The 62-page complaint raises a number of questions.

Are Damore and Gudeman seeking monetary damages for their terminations? The complaint opens by saying “Google employees who expressed views deviating from the majority view at Google on political subjects . . . were/are singled out, mistreated, and systematically punished and terminated from Google, in violation of their legal rights.” The complaint also details the circumstances of Damore and Gudeman’s terminations.

Yet none of the claims specifically seek money damages for Damore’s termination or anyone else’s. Instead, the claims for discrimination and other legal wrongs assert only that Damore and others were injured by such other less damaging wrongdoing as Google unlawfully considering race or gender in promotion decisions; protecting women and minorities, but not white men, from “negative comments” in the workplace; and ignoring complaints from white men about abuse they were suffering. Damore and Gudeman claim Google retaliated against them for complaining about hostile comments from co-workers and about the company’s “unlawful hiring and promoting practices”-- not by firing them, but “by issuing them verbal and written warnings, and providing them with decreased performance reviews.”

I emailed Damore’s attorney Harmeet Dhillon to ask whether she intended to seek damages for her clients’ terminations or instead intended to seek relief only for these lesser wrongs. Dhillon responded that “there is no shortage of pleading [of allegations] in our complaint.” That’s true, but that didn’t quite answer my question.

If Damore and Gudeman seek to recover for the loss of their highly-compensated livelihoods at Google due to unlawful racial, gender, or political bias, it will be hard for them to show that suing on behalf of numerous other current and former Google employees is necessary because the damages they individually have suffered are too small to justify the expense.

Will any of the individuals Damore alleges harassed him and other conservative white males be added as defendants? The complaint quotes by name many Google employees who posted sometimes profane electronic messages to Damore and others like him. Yet none of the alleged harassers is sued individually, even though California law makes individuals who engage in unlawful workplace harassment liable for it. Dhillon declined to comment on why only Google, and no alleged individual harasser, is named as a defendant at this time.

Who will decide this case? The parties could decide to settle the case, but that’s doubtful. The ideological charge of the complaint suggests the lawsuit is motivated more by principle than money. Google, for its part, may feel compelled to mount a no-holds-barred defense to protect its ability to maintain a workplace environment consistent with its core values.

A private arbitrator may decide the case if Damore and other employees signed an agreement requiring arbitration of employment–related disputes. Dhillon declined to confirm or deny that Damore had. Arbitration may expedite resolution of the case and keep developments up to tht resolution mostly private.

Or the matter may be decided in court. A judge could dismiss the case before trial for lack of evidence that Google did anything illegal, even if the plaintiffs were believed. Alternatively, a judge could conclude that questions Damore raises in the complaint -- such as whether Google discriminates against perceived conservatives, whites, or men as a matter of policy -- must be decided by a jury after hearing from both sides.

It is too soon to know exactly what wrongs will be decided, whose wrongs and injuries will be decided, and who will do the deciding. What can be said is that in our fraught cultural and political moment, this case is worthy of attention -- right from the start.

Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw.